B (A Child), Re

In private-law child proceedings, a court deciding whether to transfer primary care from a parent to a grandparent must investigate material history bearing on the parent’s opposition to contact and the comparative merits of the proposed carers. A previous compromise of fact-finding issues in contact proceedings does not, without more, remove the need for inquiry in a later and graver residence application. The welfare evaluation must address both the harm of disrupting the child’s relationship with the primary carer and the harm of continuing loss of contact with the other family. An appellate court respects the trial judge’s discretion, but may intervene where procedural unfairness prevents a balanced assessment or the reasons do not adequately explain departure from clear professional advice.

The child had lived primarily with her mother. Following turbulent parental relations and disputes about contact with the paternal family, the paternal grandmother applied for a residence order. Earlier proceedings concerning contact had included allegations and a compromised fact-finding hearing. The mother was vulnerable and had previously required procedural protection. After a four-day hearing, the Bradford County Court granted residence to the grandmother, relying principally on the mother’s opposition to paternal contact and the grandmother’s willingness to promote contact with the mother, despite a contrary local authority recommendation. The mother appealed, alleging procedural unfairness, inadequate investigation of the relevant history and insufficient reasons for rejecting the professional advice. The central issue was whether the residence decision could properly be made without reopening that history.

Lord Justice Thorpe allowed the appeal. Lord Justice Laws agreed and concurred in the proposed directions.

1. The judge could not fairly make adverse findings against the mother, or positive findings in favour of the paternal family, without considering the history relied on by the mother to explain her opposition to contact. That history had to be examined in the context of the substantially more serious application to transfer primary care from mother to grandmother. The earlier compromise in contact proceedings did not make further inquiry unnecessary.
2. The trial judge’s welfare discretion attracted substantial appellate respect. The Court of Appeal could not intervene merely because it might have reached a different conclusion. Intervention was nevertheless required where the process did not permit a balanced assessment of the competing carers and the reasons did not sufficiently explain rejection of the clear social work recommendation that the child remain with her mother.
3. The proper welfare assessment required reconsideration of the alleged emotional harm caused by interruption of the relationship with the paternal family, the consequences of removing the child from her primary carer, the basis for the mother’s hostility and the reliability of the grandmother’s proposed promotion of contact. If the mother’s antipathy arose from founded experiences of abuse, criticism of her had to be moderated and the positive assessment of the paternal family re-evaluated.
4. The court observed that transferring contact from an obdurate parent to another parent may be a weapon of last resort, but a transfer of primary care to a grandparent is a materially graver step. Grandparents are not on equal footing with parents. This observation was not necessary to the disposal.
5. The residence order of 18 April was set aside. The child was to remain with the mother pending a more extensive retrial. The Court of Appeal urged consideration at the first directions appointment of appointing a guardian for the child.

1. Court of Appeal (Civil Division): Appeal allowed. The residence order was set aside and a more extensive retrial directed.
2. Bradford County Court sitting at Huddersfield County Court: On 18 April 2012, HHJ Cliffe granted the paternal grandmother a residence order, transferring the child from the mother’s primary care.